R v Gowans - [2013] NSWDC 284

District Court

New South Wales

Medium Neutral Citation: R v Gowans [2013] NSWDC 284
Hearing dates: 9 August 2012; 26 April 2013
Decision date: 26 April 2013
Before: Berman SC DCJ
Decision:
Impose an aggregate sentence consisting of a non parole period of 3 years with head sentence of 5 years

Catchwords: CRIMINAL LAW - Sentence - Form 1 - Continuing attitude of disobedience towards the law - Aggravated enter dwelling with intent to commit larceny, knowing there was a person inside - Break enter and steal - Steal from a dwelling - on parole at time of offence
Legislation Cited: Crimes (Sentencing Procedure) Act
Cases Cited: R v Fernando(1992) 76 ACrimR 58
Category: Sentence
Parties: The Crown
Elizabeth Tara Gowans
Representation: Director of Public Prosecutions
Aboriginal Legal Services - Offender

File Number(s): 2012/366166

SENTENCE

HIS HONOUR: The ultimate purpose of sentencing is to protect the community. Sometimes, indeed usually, Judges hope to achieve that objective by imposing upon offenders sentences which will deter, not only them, but others who might be tempted to offend in a like manner. But sometimes the protection of a community is best achieved by promoting an offender's rehabilitation. The idea is that if a sentence can be fashioned which sees an offender move away from a life of crime, then the result that that individual will commit no further offences achieves a great benefit to the community.

When Miss Gowans first appeared before me on 9 August last year there were suggestions, which I accepted, that in her case the protection of the community was best served by allowing her to demonstrate to me that she was capable of rehabilitating herself. I therefore allowed her bail under s 11 of the Crimes (Sentencing Procedure) Act. She went to a residential rehabilitation program but she broke the rules of the program and was excluded.

She lived with her mother for awhile, but then came back before me because it was a condition of bail that she go to that residential rehabilitation program. I was persuaded to continue to allow Miss Gowans to have the opportunity of demonstrating to me that she could rehabilitate herself and so she went to a different residential rehabilitation program. Any hope that something positive and significant might be achieved was dashed on 24 November 2012 where Miss Gowans, after an argument she says with her boyfriend, took drugs and committed a whole series of offences for which she must now be sentenced.

Miss Gowans is a person who has spent a great deal of her adult life in custody because she continually breaks the law. She has demonstrated a continuing attitude of disobedience to the law. When she took the Xanax on 24 November 2012 she had been under no illusions about what would happen to her if she committed offences whilst under the influence of drugs and of course she well knew of her propensity to do precisely that, to commit offences whilst under the influence of drugs.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gowans

Details

AGLC: R v Gowans [2013] NSWDC 284
Case: [2013] NSWDC 284
Decision Date: 26 April 2013

CaseChat Overview and Summary

The defendant, Gowans, was charged with multiple offences including aggravated enter dwelling with intent to commit larceny, break enter and steal, and steal from a dwelling. These offences occurred while Gowans was on parole. The case was heard in the relevant court which examined the appropriate sentence to be imposed.

The primary legal issue before the court was determining the appropriate sentence for the defendant's crimes, particularly in light of his continuing attitude of disobedience towards the law and his status on parole at the time of the offences. The court had to consider the severity and nature of the crimes, as well as the defendant's criminal history and conduct during parole. The court was also tasked with assessing whether the sentence should reflect the need for general and specific deterrence, as well as any potential for rehabilitation.

The court found that the crimes committed by the defendant were serious and demonstrated a continuing attitude of disobedience towards the law. The court emphasised the gravity of the offences, particularly the aggravated enter dwelling with intent to commit larceny, which involved knowingly entering a dwelling where a person was present. Considering the defendant's history and the need for both general and specific deterrence, the court determined that an aggregate sentence was appropriate. The court imposed a non-parole period of 3 years with a head sentence of 5 years, reflecting the seriousness of the offences and the need to protect the community.

The court's final orders were that the defendant, Gowans, be sentenced to an aggregate sentence consisting of a non-parole period of 3 years with a head sentence of 5 years. This decision was based on the gravity of the offences, the defendant's ongoing disregard for the law, and the necessity to ensure both general and specific deterrence.

Orders

Orders of the court

Impose an aggregate sentence consisting of a non parole period of 3 years with head sentence of 5 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Gowans [2013] NSWDC 284
Hearing dates:	9 August 2012; 26 April 2013
Decision date:	26 April 2013
Before:	Berman SC DCJ
Decision:	Impose an aggregate sentence consisting of a non parole period of 3 years with head sentence of 5 years
Catchwords:	CRIMINAL LAW - Sentence - Form 1 - Continuing attitude of disobedience towards the law - Aggravated enter dwelling with intent to commit larceny, knowing there was a person inside - Break enter and steal - Steal from a dwelling - on parole at time of offence
Legislation Cited:	Crimes (Sentencing Procedure) Act
Cases Cited:	R v Fernando(1992) 76 ACrimR 58
Category:	Sentence
Parties:	The Crown Elizabeth Tara Gowans
Representation:	Director of Public Prosecutions Aboriginal Legal Services - Offender
File Number(s):	2012/366166